Amending the Electoral Count Act doesn’t concede that Trump was right about Pence’s role on January 6, 2021

I’ve seen occasional (and perhaps we’ll see them grow increasingly frequent) comments about proposals to amend the Electoral Count Act of 1887 make a similar argument. Amendment proposals (including the Electoral Count Reform Act) will expressly provide that the President of the Senate’s role is “ministerial.” Doesn’t that mean (some wonder) that President Trump had a point ahead of January 6, 2021: that Vice President Pence did in fact have some discretion to refuse to count electoral votes, and now Congress is scrambling to stop it in the future?

No, for three reasons.

First, proposals presented to President Trump and to Vice President Pence called for Pence to ignore the Electoral Count Act. They argued that the Act is unconstitutional and that the President of the Senate could simply ignore it. Those arguments rested on a different premise: that the President of the Senate, not Congress, counts electoral votes. (I trace, and reject, some of these arguments here and here.) And amending the Act really doesn’t change that.

Second, one can clarify ambiguities in a statute without conceding that the ambiguities should have been construed to grant the President of the Senate any power under the Act (and, again, see the first point about the actual arguments advanced ahead of January 6, 2021). Clarifying ambiguities provides important value: to prevent future confusion or attempts to exploit those ambiguities in ways inconsistent with the Act.

Third, others have suggested there are existing ambiguities inside the Electoral Count Act that they desire future Presidents of the Senate to exploit in the future. (For that, see my post here.) Cutting off the threat of future problems is an important component of ECA reform, and it’s addressing an issue different from the reactions to past experienced weaknesses in the law.

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